Recently the United States Supreme Court decided, in the case of Sessions v. Dimaya, that that the federal definition of the term “crime of violence” is unconstitutionally vague. That phrase is defined in 18 U.S.C. Section 16 (b) and may be found here. Readers may note that the definition struck down as unconstitutionally vague is identical to the definition of “crime of violence” found in 18 U.S.C. section 924, which criminalizes the act of possessing a firearm in furtherance of “drug trafficking crime” or a “crime of violence.”

The Court in Dimaya was following up on their 2015 opinion in Johnson v. United States, which struck down so called “residual clause” of the Armed Career Criminal Act on the grounds of vagueness. The Armed Career Criminal Act’s residual clause defined the term “violent felony” in such a way so as to render it void for vagueness. The Dimaya court extended that rationale to the “crime of violence” definition embedded in federal law at 18 U.S.C. Section 16(b).

Though the U.S. Supreme Court in Dimaya did not expressly rule or consider a constitutional challenge to the 924(c) provision criminalizing the possession of a firearm in furtherance of a crime of violence, the reasoning employed clearly raises significant questions as to the continued vitality of that section of 924(c). It would appear it may offer relief to people indicted in Federal Court or those convicted but whose have not become final. The question as to whether it will be the basis on which to file a post conviction habeas writ for those whose convictions have become final will be the topic of a future post

On June 15, 2017 the Governor signed a bill into law that will significantly change eligibility for “Orders of Non Disclosure,” to allow people who have been convicted of Driving While Intoxicated to obtain such an Order. An “Order of Non Disclosure” is a Court Order to any agency in possession of your criminal history record information to seal the record and not disclose it to third parties. In other words, an Order of Non Disclosure allows one to shield the fact of their case from public view and scrutiny. An Order of Non Disclosure prevents the general public from viewing your criminal history. This is helpful in a number of ways, for example an Order of Non Disclosure would prevent prospective employers from viewing your record. This would also apply to apartment complexes that are considering renting you an apartment, etc. The are exceptions to the Non Disclosure order in terms of who may access the record, but it is a fantastic tool to prevent the general public from ever knowing that you have a previous criminal case.

Until now, people convicted of Driving While Intoxicated in Collin County, Texas (or anywhere in Texas for that matter) were prohibited by law from obtaining a Non Disclosure Order. That is about to change. Effective September 1, 2017 people convicted of Driving While Intoxicated will be able to obtain an Order of Non Disclosure even if convicted of DWI. The following conditions must be met in order to qualify.

The Driving While Intoxicated Conviction you seek to Nondisclose must be a first offense.

This week the United States Supreme Court delivered a significant ruling on free speech and the First Amendment. In an 8-0 ruling ,the Court held that a North Carolina law preventing registered sex offenders from accessing the internet, for the purpose of engaging with social media platforms such as Facebook and Twitter impermissibly restricted free speech in violation of the first amendment. The case, known as Packingham v. North Carolina came about when Mr. Packingham, a registered sex offender, logged on to Facebook and wrote a post expressing gratitude for the dismissal of a traffic citation.

For this he was indicted under the North Carolina law which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” Justice Kennedy wrote the opinion for the Court and he stressed the importance of social media in present day society as the place where we now discuss religion and politics, search for employment, chat with friends and even scheduled events. Referring to social media as the “modern public square” the Court held that the North Carolina law was not consistent with the Constitutional guarantee of free speech.

How might this impact Texas? While Texas criminal statutes do not prohibit a registered sex offender from accessing the internet, state parole laws most certainly do and the prohibitions are fairly stringent. In addition, a no internet access condition is sometimes imposed by agreement or by the Court in situations where a registered sex offender is being placed on community supervision. Though the Texas laws were not directly at issue in Packingham, the Court’s robust interpretation of free speech in this context does call into question the continuing validity of broad laws that prohibit registered sex offenders from generally accessing social media.

In Texas, a person’s previous criminal convictions may come back to haunt the present. If you are facing a criminal charge in Texas, you must carefully consider the number and type of any previous criminal convictions. In some situations, a previous conviction or convictions may be used to “enhance” or raise the punishment level in the charge you are now facing.

Your previous convictions may have no impact, a minor impact or in some cases a major impact with lengthy mandatory minimum terms of imprisonment. So, how does the law work?

1st degree felony charges: If you face a first degree felony, one prior non state jail felony conviction raises your statutory range from 5-99 or life to 15-99 years or life. Two prior sequential non state jail felony conviction raise the minimum punishment to an eye popping 25 years.

We are often asked questions about conditions that people may be asked to complete if they are placed on community supervision. Below are listed some of the most common, with details provided. Each case is unique and conditions that may be appropriate in one case are completely inappropriate in another.

Most people have a general understanding that they have a Constitutional right to a “speedy trial.” What does that really mean, and how can it be utilized to help someone charged with a criminal case? Both the U.S. and Texas constitutions provide a speedy trial right. Meaning that the Government, whether that be the State of Texas or the Federal Government, must afford you a trial within a certain period of time or your right to a speedy trial has been violated. If your constitutional right to a speedy trial has been violated, the law requires that the case against you be dismissed.

As you see, the violation of your right to a speedy trial is a serious matter that my lead to the dismissal of charges against you. When the Court is considering whether your right to a speedy trial has been violated, the Court considers 1) the length of the delay, 2) the reason of the delay 3) the assertion of the right to speedy trial and 4) the “prejudice” that you may have suffered as a result of the delay. The four factors I list all must be considered.

Courts have found delay to be “presumptively prejudicial” as it approaches one year. If your case has been pending for a year or more, that level of delay could be considered prejudicial to your speedy trial right. The second factor is the reason for the delay. If the reason for the delay is that the state was not diligent, that weighs in your favor. If the reason for the delay is that you took steps to delay resolution of the case, that weighs against you. The third factor, ” assertion of the right” means that you must actively make the court aware of the delay and demand speedy trial. The fourth factor deals with the prejudice you may have suffered. “Prejudice” can take many forms, even sometimes just anxiety and concern on the part of the accused. Prejudice does not necessarily require that you suffer some sort of impairment to your defense. Though prejudice may involve some apparent impairment of the defense, the law is clear that prejudice may involve only anxiety and concern, or expense or impairment of employment prospects.

So called “mandatory minimum” sentences for numerous Federal crimes were established a generation ago by the United States Congress. From a policy and financial standpoint, many people have come to the conclusion that the societal benefits are now substantially outweighed by the human costs and the costs purely in terms of dollars. This point of view is shared by many (though certainly not all) in Congress across all political stripes. This topic is starting to generate bipartisan Congressional support among some Senators and Representative of both parties. In fact, legislation was proposed in the Senate known as the Sentencing Reform and Corrections Act of 2015. Among other items, this proposed law would reduce and/or eliminate mandatory minimum sentences and expand the “safety valve” eligibility. The bill has not been passed, though it may move to the Senate floor for consideration this year.

What is interesting to me about the bill is that it is sponsored by such a politically diverse group of Senators. The bill has found support form a large number of former federal prosecutors and senior Government officials including two former FBI Directors and a U.S. Attorney General.

The proposed changes to the mandatory minimum are fully supported by the Charles Colson Task Force on Federal Corrections. The Colson task force describes itself as a:

Texas Penal Code 33.07 potentially criminalizes speech that is protected under the First Amendment. Furthermore, it is overbroad. The statute is so sweeping it would appear on its face to potentially criminalize satirical websites, Twitter or Facebook accounts aimed at politicians or other public figures. 33.07 was adopted in 2011 and higher courts have not yet ruled upon its constitutionality. The Fourteenth and Fifth Courts of Appeals have avoided addressing the First Amendment claim on jurisdictional or other procedural grounds.

The Statute

ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

In 2014, the United States Sentencing Commission approved an Amendment to the United States Sentencing Guidelines (The Guidelines). The Guidelines are the mechanism by which people are ordinarily sentenced in Federal criminal cases. The Amendment lowered the so called Base Offense Level for many types of drugs by two points and it became effective on November 1, 2014. The United States Sentencing Commission promulgated a policy statement making the reduction retroactive. The fact that the amendment is retroactive allows for those already sentenced to in a federal drug case come back to the Court and request a sentence reduction.

What does this mean? It means that many individuals sentenced in federal drug conspiracy cases prior to November 2014 received a lengthier Guidelines sentence than they would receive now. This is due to the two point base offense level reduction authorized by the Sentencing Commission and approved by Congress. The law allows for people sentenced prior to the November 2014 amendments to petition the U.S. District Court to reduce their existing sentence based on the changed base offense level. The two point reduction may sound almost insignificant, but a two point reduction can results in a sentence lowered by many months or even years.

The United States Court of Appeals for the Fifth Circuit recently issued an opinion that may significantly impact the way that Federal drug prosecutions are carried out in Texas. On October 15, 2015 the Court decided United States v. Haines, No. 13-31287, 2015 WL 6080523. The Haines Court held that the Sixth Amendment to the U.S. Constitution requires that a jury make a defendant specific finding, beyond a reasonable doubt, of the drug quantity to each individual defendant to establish the statutory minimum sentence.

Under the law as it existed prior to Haines, the only question for the jury to decide concerning drug quantity was the amount involved in the overall scope of the conspiracy. The question of the amount applicable as to each individual defendant was a sentencing question for the Court on a lower standard of proof. In the post Haines world, if the Government seeks to convict someone of federal conspiracy to possess with the intent to distribute drugs in an amount that carries enhanced statutory minimum sentences, the Government must prove that the individual person involved is personally responsible for an amount of drugs that triggers the statutory enhancement. For example, under 21 United States Code section 841(b)(1)(A), a conspiracy involving 5 kilograms or more of a cocaine mixture subjects a person to a mandatory statutory minimum of ten years imprisonment.

Prior to Haines, to subject someone to that mandatory minimum sentence, all the Government would need to prove is that they were guilty of a conspiracy to possess with the intent to distribute, and the the overall scope of the conspiracy involved 5 kilograms or more. Now, to subject someone to that mandatory minimum, they must proved not only guilt as the the conspiracy, but also that the individual person is personally responsible for an amount sufficient to trigger the enhanced minimum penalty.